26-66-Order Recorded 10/19/1977Vol 26FAU 66
I III THE BOARD OF COUNTY COMMISSIONERS
2 OF THE STATE OF OREGON
3 FOR THE COUNTY OF DESCHUTES
4 In the Matter of an Ordinance )
Providing for Uniform Procedure )
5 Governing Land Use Applications, ) ORDINANCE PL-9
Public Hearings and Appeals thereon )
6
7 The County of Deschutes, Oregon, ordains as follows:
8 Section 1.000 Authority. This ordinance is enacted pursuant
9 to the provisions of ORS 215.412.
10 Section 1.100 Title. This ordinance shall be known as
11 the Deschutes County Uniform Hearings Procedure Ordinance.
12 Section 1.150. Purpose. The purpose of this ordinance is to
13 provide a uniform procedure applicable to land use actions.
14 Section 2.000 Definitions. As used in this ordinance, the
15 following words and phrases shall mean:
16 2.001 "Applicant". A person applying for a permit,
17 rezoning or non-legislative comprehensive plan change.
18 2.005 "Application for Land Use Permit". A written
19 application requesting a change in zoning, conditional and non-
20 conforming uses, variances, subdivisions and matters relating to
21 the comprehensive plan, and amendments to plan;
22 2.010 "Board". The Deschutes County Board of Commissioners.
23 2.015 "Contested Case". Proceedings in which the legal
24 rights, duties or privileges of specific parties under the Deschutes
25 County Zoning Ordinance, Subdivision Ordinance, Land Partition
26 Ordinance or other similar ordinance regulating land use are required to be
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1 determined only after a hearing at which specific parties are
2 entitled to appear and be heard.
3 Section 2.020 Hearing, Initial.
4 1. An initial hearing is a quasi-judicial hearing authorized
5 and conducted by the Hearings Officer or Planning Commission to
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determine:
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(a) If a change or permit shall be granted or denied.
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2.025 "Hearings Officer."
A planning and zoning Hearings
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Officer appointed or designated by the
Board of County Commissioners
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pursuant to ORS 215.406 or, in the absence of such appointed Hearings
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Officer, the Deschutes County Planning
Commission.
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2.030 "Land Use Action."
Any action involving an application
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for a land use permit.
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2.035 "Party." Any person
who has standing to be heard
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under Section 8.000.
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2.040 "Permit." Authority
for, or approval of a proposed
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use of land for which approval is a matter of discretion and is
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required by a land use ordinance. The
term includes, but is not
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limited to, permission given for those
changes set forth in Section
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2.005 and a special exception, special
design zone and other similar
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permits.
22 2.045 "Person." An individual, firm, partnership,
23 corporation, company, association, syndicate, or any legal entity,
24 and including any trustee, receiver, assignee or other similar
25 representative.
26 Section 2.050 "Planning Commission." The Deschutes Planning
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1 Commission duly appointed by the Board.
2 Section 3.000 Application of Ordinance. The following shall be
3 processed or conducted in accordance with the ordinance.
4 1. All permit applications.
5 2. All contested cases.
6 3. All reviews initiated by the Planning Commission or
7 Board of an initial hearing.
g 4. All appeals from Hearings Officer or Planning
9 Commission.
10 Section 4.000 Filing of Staff Report and Reply.
11 1. Within 20 days of the filing of an application for land
12 use permit, the Planning Department shall render a staff report
13 setting forth its findings and recommendation, if any.
14 2. A copy of the staff report shall be mailed or otherwise
15 delivered to the applicant, to the Hearings Officer and to such other
16 persons entitled to personal notice as may request the same and pay a
17 reasonable fee for the costs of the duplication, mailing and
18 administrative overhead.
19 3. Within 20 days after receipt of the staff report, the
20 applicant shall reply in writing to the findings and recommendations
21 set forth in said report, citing his exceptions, if any, thereto and
22 the reasons therefore. Failure to submit written exceptions to the
23 staff report shall constitute a bar to the presentation thereof at
24 the time of hearing.
25 4. A copy of the applicants reply shall be mailed or
26 delivered to the staff and Hearings Officer, and to such other persons
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entitled to
personal
notice as may request the same and pay a reasonable
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fee for the
costs of
the duplication, mailing and administrative
3 overhead.
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5.
Ten days
after
receipt
of the applicant's reply
or
3
response, the
initial
public
hearing
date shall be determined
and
6 thereafter published.
7 Section 5.000 Notice of Hearing. At least ten days prior to said
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hearing, written notice shall be sent by mail to the following
persons: (1) The applicant;
(2) All property owners of record, as shown on the official
maps of the Deschutes County Tax Assessor, within 250 feet
of the property which is the subject of the application.
Whenever a larger notification area is provided for by
ordinance, statute or regulation, it shall be controlling.
(3) The failure of a property owner to receive mailed
notice shall not invalidate any land use action if a good
faith effort was made to give notice required by this
section. The date of mailing shall be considered the date
19 of notice.
20 Section 5.010 Contents of Notice. All notices prepared pursuant
21 to this ordinance shall contain:
22 (1) The date, time and place of the hearing;
23 (2) A legal description and a facsimile of the tax assessor's
24 official map, noting the subject property;
25 (3) The nature of the proposed action;
26 (4) A statement that all parties may appear and be heard.
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1 Section 5.020 Published Notice. In addition to notice by mail,
2 notice of a hearing shall be published in a newspaper of general
3 circulation in the county at least ten days prior to the hearing.
4 Section 6.000 Burden of Proof.
5 1. The burden of proof is upon the one seeking change. The
6 degree of that burden increases proportionately with the degree of
7 impact of the change which is sought.
8 2. The applicant shall in all cases establish:
9 (a) Conformance with the Comprehensive Plan; and
10 (b) Conformance with all applicable statutes; and
11 (c) Conformance with all applicable ordinance provisions
12 setting forth the various criteria to be employed for rezoning,
13 conditional uses and variances; and
14 (d) Conformance with statewide planning goals wherever
15 they are determined to be applicable.
16 3. In addition to the requirements of subsection (2) of this
17 section, the applicant shall in the case of a requested rezoning
18 establish:
19 (a) That there is a public need for a change of the kind
20 in question; and
21 (b) That need will be best served by changing the
22 classification of the particular piece of property in question as
23 compared with other available property.
24 4. In the case of a rezoning, proof of a change of
25 circumstance or a mistake in the original zoning are additional
26 relevant factors to consider.
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1 Section 7.000 Nature of Evidence.
2 1. All evidence which is reliable, probative and substantial
3 shall be received. Such evidence shall be the type commonly relied
4 upon by reasonable prudent persons in the conduct of their serious
5 affairs.
6 2. The Hearings Officer may take notice of judicially
7 cognizable facts and may further take notice of general, technical or
8 scientific facts within his specialized knowledge. Parties at a
9 hearing shall be notified of any facts so noticed and afforded an
10 opportunity to contest the facts so noticed.
11 3. All evidence offered and received shall be made a part of
12 the record of the case and, except for the facts which are noticed,
13 no other factual information or evidence shall be considered in the
14 determination of the issue. Documentary evidence may be received in
15 the form of copies or excerpts, or by incorporation by reference.
16 4. Every party shall have the right of cross-examination
17 of witnesses who testify and shall have the right to submit rebuttal
18 evidence. Other participants permitted to testify or present evidence
19 shall have such rights as are determined by the Hearings Officer.
20 Section 7.010 Limitation on Oral Presentations.
21 1. The Hearings Officer may set reasonable time limits for
22 oral presentations. Parties shall submit prior to the hearing such
23 relevant and material evidence in writing as is necessary to support
24 their positions, and shall limit oral presentation to explanation of
25 the written presentation.
26 2. Groups who have standing under Section 8.000 shall
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1 be encouraged to select spokesmen to present their position.
2 3. The Hearings Officer may exclude or limit cumulative,
3 repetitious or immaterial matter.
4 Section 7.020 Oath or affirmation. The Hearings Officer may
5 place any person submitting testimony under oath or affirmation.
6 Section 8.000 Standing. The following persons are affected
7 parties and shall be entitled to appear of record either by them-
8 selves or through counsel at a hearing:
9 1. All persons entitled to personal notice by mail;
10 2. A neighborhood group that represents at least 50% of
11 the property owners within the notification area;
12 3. Any person who demonstrates to the Hearings Officer that
13 his legal rights are affected by the outcome of the hearing.
14 Section 9.000 Record.
15 1. A verbatim record of the hearing shall be made by
16 written or mechanical means.
17 2. All physical and documentary evidence presented shall
18 be marked to show the identity of the person offering the evidence and
19 whether presented on behalf of the proponent or opponent. Evidence
20 may be received subject to a later ruling as to its admissibility.
21 3. All exhibits received shall be retained by the Hearings
22 Officer until after any applicable appeal period has expired, at which
23 time the exhibit shall be released upon demand to the person identified
24 thereon.
25 Section 10.000 Challenge for Bias, Prejudgment or Personal
26 Interest.
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1. Any party may challenge the qualifications of the
Hearings Officer, member of the Planning Commission or Board of
Commissioners for bias, prejudgment, or personal interest prior to
commencement of a hearing.The challenge shall be documented with specifics
2. No Hearings Officer or member(s) of a hearing body or
County Commissioners shall participate in a hearing, except under the
rule of necessity, if:
(a) He has a direct or substantial financial interest
in the subject of the hearing;
(b) He is related to the applicant or opponent in the
manner provided for in ORS 215.035;
(c) He is in business with the applicant;
(d) He has violated the prohibition on prehearing
contacts as provided in Section 10.020;
(e) For any reason he determines affects his
16 impartiality.
17 3. Upon challenge to the Hearings Officer, hearings body
18 member or County Commissioner, or should the member or officer have
19 knowledge of personal involvement in the manner described in subsection
20 (2) of this section, he shall withdraw from the hearing or make a
21 statement of his capacity to hear, which statement shall be a part of
22 the record.
23 Section 10.020 Prohibition on Pre-hearing Contacts.The Hearings
24 Officer, the Planning Commission and the Board of Commissioners shall
25 not communicate directly or indirectly with any party or his
26 representative in connection with any issue involved in a hearing
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1 except upon notice and opportunity for all parties to participate.
2 Section 11.000 Hearing Procedure. A hearing shall be conducted
3 in the following order:
4 1. Explanation of the purpose of the hearing and a brief
5 statement of what the applicant must prove to have the request granted.
6 2. Call for challenges and abstentions.
7 3. Statement(s) of capacity to hear.
8 4. Objections to jurisdiction. Any objections to lack of
9 jurisdiction or failure to follow procedural requirements shall be
10 made at this time. If there is substantial evidence that there is a
11 lack of jurisdiction or that all procedural requirements were not met,
12 the hearing shall be terminated. A hearing so terminated shall be
13 rescheduled upon remedy of the defect.
14 5. The staff report shall be presented. If a recommendation
15 is made, the report shall contain findings adequate to independently
16 support the recommendation if the report were the entire record.
17 6. Questions to the staff shall be permitted from any party.
18 7. Applicant's case shall be presented as follows:
19 (a) The applicant shall first be heard on his own
20 behalf, or by his agent or attorney.
21 (b) Upon failure of the applicant or his representative
22 to appear at the hearing, or upon his express waiver to present
23 testimony, the written application, together with written and documentary
24 evidence submitted as part of the record, shall be considered as
25 presenting the applicant's case.
26 (c) Parties in favor of the applicant's request shall
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VOL 26 FACE 75
next be heard.
8. Cross-examination of the applicant by the opponents shall
be permitted. The Hearings Officer may regulate the method of cross-
examination, but shall allow reasonable time to both the opponents
and to the applicant to answer all questions.
9. Opponent's case may be presented. Opponents shall be
heard in the following order:
(a) Neighborhood organizations,
(b) Persons entitled to written notice by mail,
(d) Persons not entitled to notice.
10. Cross-examination of opponents shall be in the same
manner as allowed the applicant.
11. Public agencies affected by the request shall be allowed
an opportunity to present evidence.
12. Close of hearing and deliberation. The Hearing Officer
shall either make his decision and state the findings of fact or
continue deliberation to a subsequent date, the time and date of
which shall be announced. No additional testimony or evidence shall be
taken after closing of the hearing.
Section 12.000 Re-application Limited. If a specific application
is denied, no re-application for substantially the same proposal may
be made for six (6) months following the date of the final decision.
Section 13.000 Review by Planning Commission and/or Board.
1. A review of the Hearings Officers actions and decisions
may be initiated individually or jointly by the Planning Commission
or the Board.
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1 2. The review shall be ordered within 15 days of the
2 initial hearing.
3 3. A review hearing shall be conducted in the same manner
4 provided for in appeals.
5 Section 14.000 Appeal by Affected or Aggrieved Party.
6 1. The decision of the Hearings Officer or Planning
7 Commission shall be final unless a notice of appeal is received by
8 the Planning Director within ten days following the final written
9 determination by the Hearings Officer or Planning Commission.
10 2. Any affected or aggrieved party may file a notice of
11 appeal, or an appeal may be initiated upon motion of the Planning
12 Commission.
13 3. The appeal of an initial hearing shall be first addressed
14 to the Planning Commission and an appeal from a decision of the
15 Planning Commission shall be addressed to the Board.
16 Section 14.010 Notice of Appeal
17 1. Every notice of appeal shall contain:
18 (a) a statement of the interest of the petitioners in
19 order to determine if he was an affected or aggrieved party.
20 (b) a reference to the application sought to be reviewed
21 including the date of the final decision of the Hearings Officer.
22 (c) the specific grounds relied upon for the appeal.
23 (d) a statement showing how the Hearings Officer, Planning
24 Commission or Board erred in the application of the prescribed
25 criteria and requirements, and erred in the determination of the basic
26 facts to support the decision.
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1 Section 14.020 Notice of Hearing on Appeal.
2 1. Notice of the hearing and a record of proceedings or
3 review shall be the same as required for a initial hearing.
4 2. If the hearing is to be held de novo pursuant to Section
5 14.020 (4), (a) and (b), notice of such fact shall also be given.
6 3. Except as provided by subsection (4) of this section;
7 the review of the initial hearing shall be confined to the record of
8 the proceeding below, which shall include:
9 (a) All materials submitted by any party to the
10 proceeding which were duly received or considered by the hearings officer
11 and Planning Commission as evidence;
12 (b) All materials submitted by the Planning Department.
13 (c) The tape recording and the minutes of the hearing;
14 or a transcript of the hearing if requested by the Board;
15 (d) The findings made and actions taken by the Hearings
16 Officer or Planning Commission and the notice of appeal;
17 (e) Argument by the parties or their legal representatives
18 at the time of review by the Hearings Officer or Planning Commission.
19 4. (a) A party may request a de novo hearing by filing a
20 written motion with the Planning Commission or Board of Commissioners
21 not less than ten days prior to the time set for the review hearing.
22 The motion shall set forth the reasons for the requested de novo
23 hearing.
24 (b) The Planning Commission or Board of Commissioners
25 shall grant or deny the motion within two days of its receipt. Upon
26 granting the motion, the Planning Commission or Board may determine
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VOL 26 PAGE 78
1 to conduct the hearing on review either fully de novo or de novo
2 on the record. If the motion is denied, the hearing shall be
3 conducted in conformance with Section 14.020 (3).
4 (c) A de novo hearing on review shall be conducted in
5 conformance with Section 11.000.
6 5. The Planning Commission or the Board may affirm,
7 reverse or amend the action taken at the initial hearing, and may
8 grant approval subject to such conditions as are deemed necessary to
9 carry out the comprehensive plan or other applicable laws, ordinances
10 or regulations. The Board may also remand the matter back to the
11 Hearings Officer for further review or information.
12 6. In all cases the Planning Commission or Board shall make
13 findings of fact based on the evidence before it, or it may adopt
14 the findings of the hearings officer as its own. Following the close
15 of the hearing the Planning Commission or Board shall either make
16 its decision and state the findings of fact or continue deliberation
17 to a subsequent date, the time and date of which shall be announced.
18 No additional testimony or evidence shall be taken after the close
19 of the hearing. Findings of fact shall be signed by the Chairman of
20 Planning Commission or the Board and filed with the Planning Director.
21 7. The Planning Commission or Board's decision shall become
22 final at the close of business on the tenth day following the
23 decision, unless a rehearing is made pursuant to Section 15.000, or
24 an appeal of a Planning Commission's decision is requested pursuant
25 to Section 14.000.
26 Section 15.000 Rehearing by the Board of Commissioners. The
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1 Board may rehear a matter on its own motion, or upon petition of
2 an affected or aggrieved party, pursuant to this section.
3 1. A motion for rehearing shall be made, if at all, within
4 ten days after the Board's decision.
5 2. At the meeting at which the Board determines to rehear
6 the matter it shall set the time and place for such rehearing which
7 shall not be later than twenty-one days from the date of the
8 decision upon first review.
9 3. A rehearing may be heard in any manner provided for in the
10 first review, except that all new evidence and testimony intorduced
11 at the first review shall also be included in the record.
12 4. No action shall be reheard more than once.
13 Section 16.000 Changes and Amendments. This ordinance may be
14 amended, supplemented or changed by the Board. A proposal for change
15 or amendment may be initialed by the Board, the Planning Director,
16 the Planning Commission, the Hearings Officer or by the petition of
17 any property owner. All proposals shall be submitted in typed
18 draft form.
19 Section 17.000 Severability. It shall be considered the
20 legislative intent of this ordinance that if any part of this ordinance
21 is held unconstitutional or otherwise void, or is repealed of impliedly
22 repealed by federal or state law or county ordinance, it shall remain
23 in force except:
24 1. The remaining provisions which are so essential and
25 inseparably connected with and dependent upon the unconstitutional
26 or otherwise void or repealed part, that it is apparent that such
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remaining provisions would not have been enacted with the un-
constitutional or otherwise void parts or repealed part; and
2. The remaining provisions which, standing alone, are
incomplete and incapable of being executed in accordance with the
legislative intent.
6 Section 18.000 Publication and Effect of Rules.
7 i,t 1, To the extent that these rules conflict with rules of
8 procedure established by another land use ordinance, these rules
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shall apply.
2. These rules shall be published and made available for
the cost of reproduction to all persons requesting them.
The foregoing ordinance being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this ordinance takes effect on the 19th
day of October, 1977.
DESCHUTES COUNTY BOARD OF COMMISSIONERS
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COMMISSIONER